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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.

MITSUBISHI CORPORATION,

Defendant.

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Criminal No. 00-033

Judge Marvin Katz

Violations: 15 U.S.C. § 1 and 18 U.S.C. § 2 (a)

Filed: 1-31-01

NOTICE OF THE GOVERNMENT'S INTENTION TO INTRODUCE EVIDENCE

In response to Defendant's motion to exclude certain Mitsubishi documents that were
created in 1990,(1) the Court issued an Order on January 24,
2001, requesting, as a matter of the
order of proof, that: (1) proof of events before the alleged conspiracy period be deferred
until
events during the alleged conspiracy period are established; and (2) evidence of
Defendant's role
in aiding and abetting the alleged conspiracy be presented as early in the trial as possible.
Because
the Government has now established the underlying conspiracy, and the 1990 documents provide
significant evidence of Defendant's plan to establish a cartel and its role in aiding and abetting
the
establishment of that cartel, the Government now intends to establish the admissibility of the
1990
documents through the testimony of trial witnesses.

The Government has established the existence of a price-fixing conspiracy among
graphite
electrode manufacturers through its first witness, HiroshiYamazaki. In fact, Defendant conceded
the existence of the conspiracy in its opening remarks, and informed the Jury that its defense
would be based on Mitsubishi's lack of participation in, or knowledge of, the conspiracy. The
focus of the Government's case, therefore, will now be to prove Mitsubishi's role in aiding and
abetting the conspiracy, and to prove that its role was both knowing and intentional.

Much of the evidence of Mitsubishi's role in aiding and abetting the conspiracy concerns
Mitsubishi's efforts to encourage the conspiracy's formation, evidence that necessarily comes
from a period prior to the conspiracy period. Mitsubishi may be found guilty of aiding and
abetting based solely on such efforts. See United States v. Galiffa, 734 F.2d 306,
309 (7th Cir.
1984). Mitsubishi's acquisition of a 50 percent ownership interest in UCAR, the world's
largest
graphite electrode manufacturer and the dominant U.S. company, plays a central role in this
case.
The 1990 documents Mitsubishi seeks to exclude were created during the period Mitsubishi
analyzed the merits of that acquisition. The documents show that at least as early as 1990,
Mitsubishi planned to increase graphite electrode prices by cartelizing the industry, and that it
spoke to manufacturers about its plan and encouraged them to meet and collude. The documents
and evidence from that period show not only that Mitsubishi sought to encourage and facilitate
price cooperation among competing graphite electrode manufacturers, but that Mitsubishi
believed its purchase of UCAR would facilitate collusion due to Mitsubishi's close relationship
to
other manufacturers.(2)

In its opening remarks, Mitsubishi argued that knowledge and participation in the
charged
aiding and abetting scheme was limited to Ichiro Fukushima and Yorizo Kimura, operating
ultra
vires. As the 1990 documents make clear, however, Mitsubishi's plan to cartelize the
graphite
electrode industry upon purchasing UCAR waswell known and widely
discussed within
Mitsubishi and demonstrate that Kimura and Fukushima were not, contrary to Defendant's claim,
off on a lark of their own. The 1990 documents are relevant to prove Mitsubishi encouraged and
participated in the formation of the conspiracy, and that its efforts were knowing and intentional.
Far from being irrelevant, as Mitsubishi has claimed, this evidence goes to the heart of
Mitsubishi's guilt or innocence.(3)

This is to certify that on the 31st day of January 2001, a copy of the Notice
of the
Government's Intention to Introduce Evidence, has been hand-delivered to counsel of record for
the defendant as follows:

2. Even assuming arguendo that Mitsubishi's investment analysis
documents show nothing
more than the fact that Mitsubishi expected higher prices and profits from UCAR through some
form of non-collusive cooperation in the industry, this evidence is highly relevant to rebut
Mitsubishi's contention that it was just a trader uninterested in higher graphite electrode prices.

3. In its Memorandum in support of its motion to exclude the 1990
documents, Defendant
identified the exhibits as "internal Mitsubishi documents analyzing the proposed [acquisition of
UCAR]." (Defendant's Memorandum, p.4) As set forth in the Government's Memorandum in
Support of its Motion In Limine To Authenticate and Admit Documents, the Government will
establish the admissibility of each of the 1990 documents as either admissions or business
records.
Admissions may take the form of (1) statements of Defendant's employees or agents or
(2) statements of individuals participating in some joint enterprise with Defendant,
including joint
efforts to acquire UCAR.